Issues concerning libraries and the law - with latitude to discuss any other interesting issues Note: Not legal advice - just a dangerous mix of thoughts and information. Brought to you by Mary Minow, J.D., A.M.L.S. [California, U.S.] and Peter Hirtle, M.A., M.L.S. Follow us on twitter @librarylaw

June 29, 2008

Free the Founding Fathers!

Last February, a Senate hearing highlighted the sorry state
of the Founding Fathers projects. While
no one questioned the extremely high scholarly quality of the published volumes
of papers that have been produced to date, the hearing noted the glacial
production pace, high cost, and limited access to the finished products (which
are expensive and bought by few libraries). The obvious question was whether technology could address the problem,
and Congress ordered the Archivist of the US to report on the matter.

NARA’s report, “The Founders Online: Open Access to the Papers of the America’s Founding Era,” was sent to Congress in April, but it
has received little notice or discussion. This is unfortunate because it is an important work on an important
issue. There is much to admire in the report,
but overall it demonstrates a fundamental failure to understand what open
access means or how technology can make scholarship more productive. It seems more interested in protecting
existing partnerships and editorial practices than in breaking new ground and
fostering public access. Let’s hope that
Congress recognizes how unsound the recommended approach is and pushes NARA to
do more.

Detailed comments follow.

There is much to admire in this report. For example, it recognizes (as do we all) the
tremendous scholarly achievement that the Founding Fathers papers
represent. It is precisely the high
value and scholarly worth of the work done up to now that makes it imperative
that more volumes are produced faster, and that access to these valuable
volumes be broader.

In addition, while Congress directed the Archivist "to
develop a comprehensive plan for the online publication, within a reasonable
timeframe, of the papers of the Founding Fathers," the report has elected to
speak of "open access" (rather than just online access). There are problems with the report's vision
of open access, as I outline below, but NARA is to be commended for in theory
at least making open access its goal.

Lastly, one of the recommendations of the report is that
NARA commission rough transcriptions of all of the remaining unpublished papers
from the Founding Fathers. These rough
transcriptions would be made available online immediately, to be replaced by
edited and annotated versions as they become available from the editorial
projects. This is a clever idea and
could do much to speed the production of future volumes (assuming that the
transcribers are experienced paleographers and can easily read the various
handwritings in the documents).

In spite of these positive steps, the overall report is
incredibly disappointing, both for what it says and what it leaves out. Here are just a few examples:

The report sets up as an option, which it then
rejects, scanning published volumes as they are finished. No one would even consider the idea of
scanning published volumes that have been produced from electronic files. The real option is to require that the
editorial projects produce their volumes according to a standard XML schema,
and that those electronic files be transferred to NARA for its use as part of
the grant. There is no discussion of how to provide open access to previously published volumes. Why not link, for example, the images of Washington's correspondence found on the American Memory site to the transcripts as published by the Washington papers project?

What about copyright you might ask (as Allen Weinstein
did at the Congressional hearing)? There
is no discussion of the extent of copyright ownership in the product produced
by the projects. It would be a scandal
if over $17 million dollars in NHPRC funding had been used to allow 3rd parties
to commercialize and control the words of the Founding Fathers. Fortunately, under the regulations governing
grants to higher education institutions and non-profit organizations (OMB
Circular No. A-110, section 36), Federal awarding agencies are required to "reserve a royalty-free, nonexclusive and irrevocable right to reproduce,
publish, or otherwise use the work for Federal purposes, and to authorize
others to do so." NARA can therefore do
what it wants with the volumes produced to date. Nevertheless, the absence of any discussion
of copyright in the report is appalling.

There is no discussion as well about the rights or
interests of the repositories that provided copies of the papers of the
Founding Fathers to the various editorial projects. We can assume that the provision of copies
carried with it permission to transcribe, annotate, and publish the works in
print. It is far from clear, however,
that the repositories - especially those that made copies in the 1950s - gave
either the papers projects or the University of Virginia permission to prepare
electronic versions of the documents or, in the case of UVA, to commercialize
the electronic version. The issue here
is identical to the Supreme Court's ruling in the Tasini case, which stated
that a publisher does not have the automatic right to prepare an electronic edition
of a work first published in print. (The
one difference, of course, is that Tasini was based on copyright rights whereas
in this instance, the issue would hinge on the contract governing the
provisions of copies to the papers projects). Again, there is no mention of the rights of the repositories that own
the originals.

This would be especially important if the report
envisaged associating facsimile images of the originals with the transcribed
content. This is something hard and
expensive to do in print, but easy to do on the Internet. Again, there is no mention of whether images
of the originals should have a place in the project - perhaps reflecting the
traditional approaches that dominate the report. (I would argue that of course they should be
there.)

Perhaps the most problematic issues in the report
surround its use of the term "open access." For some, open access means "digital, online, and free of charge." The report, while saying it wants to provide
open access to the material, appears to recommend that all material be given to
UVA's Rotunda system for delivery. Rotunda follows a subscription model - not open access - that is
remarkably expensive considering that citizens have already paid for all of the
editorial work on these volumes. How
could this be open access? Apparently
Rotunda might be willing to give up its subscription approach if a foundation
were willing to pay for all of its costs. Unless such a commitment is in place, I find it disingenuous to describe
a Rotunda delivery option as "open access." There is no discussion of other, free, delivery options, such as the
willingness expressed by Deanna Marcum of the Library of Congress at the Senate
Hearing to make all of the Founding Fathers papers accessible through LC (which
already has a good site pointing to currently accessible papers).

Others argue that for true open access, information
must be accessible outside of specific delivery systems (such as Rotunda) and
made available in bulk. Open data and
open interfaces allow for all sorts of interesting uses of material. For example, someone might want to mashup
George Washington's papers to Google Maps in order to be able to easily visual
geographically the spread of information. Others might want to mesh manuscript material with published secondary
literature. Rather than anticipating the
widespread dispersal and re-use of the Founding Fathers papers, however, and
hence the need for harvestable data, open APIs, distributed access, etc., the
report calls instead for "a single, unified, and sustainable Web site" -
apparently the locked-down Rotunda system.

As far as the slowness of the editorial process, the
report has only two recommendations to make: the creation of the common
transcription system described above, and the creation of an oversight process
to ensure that the projects meet rigorous production benchmarks. There is no consideration given, however, to how technology might improve and speed the editorial and scholarly
processes. If these projects are to
finish in our lifetimes, it is not enough that the editorial staff work harder
or raise more money (as is suggested on p. 12). Instead, the editorial process needs to be done differently. How about common editorial software, for
example, and share linked authority files so that a note about an individual in
one volume could be used by an editor in a different series? Are there other ways of speeding editorial
processes?

As I said at the beginning, the commitment to open access
and the willingness to transcribe all the remaining documents is
admirable. The report's failure to break
from its reliance on the university press publishing model, its failure to
discuss copyright and physical ownership issues, its silence on the offer of
support from the Library of Congress, and its unwillingness to consider new
models of editorial practice to speed production are damning, however. Congress needs to reject this report and tell
the NHPRC to get it right.

Comments

to jim, no it doesn't cost as much to maintain large databases online. You have an initial up front cost of servers and setup after that it's just a matter of keeping the servers up (does not require a large amount of personel) and then every so often a few typist to add to the data base.
The problem will happen when it gets bidded out, after all it's a govt. contract so the bidding may not be competitive (which happens a lot).

Richard Cox has a thoughtful blog post on the NARA report at http://readingarchives.blogspot.com/2008/06/founders-archives-and-documentary.html. He takes a slightly different approach than I do in this posting, but it is well worth reading.

Just looking at the report, it's noted for the current fiscal year that sources of funding for the papers of the Founding Father's is:

$1,542,080-Federal
$2,231,038-Non Federal
$3,773,118-Total.

So approximately 59% of funding for the papers this year is provided by non-Federal sources. A lot of this might be coming from private grants, or States, or whatever. Nevertheless, the sponsoring institutions had to wrestle them up.

The NARA report claims that $17 million has been provided by the Feds altogether over many years. So I think we can unscientifically guesstimate that $41 million has been provided by non-Federal sources over many years. Somebody has a vested interest, indeed.

Furthermore, I have in my "in-box" innumerable requests to support NHPRC. Hard to plan when your sources of money is a year to year thing. Point is- Federal money is a smaller portion of the pot then you are leading us to believe.

Furthermore, who is going to maintain all this data, especially the huge portion that will constitute the imaged documents? Who is going to migrate it and keep it over time? How much will it cost? You suggest LC, but LC currently only points to sources. This is far different from maintaining the data on-line over time. Not sure that problem has been solved, despite press releases from certain government agencies. If precedent has anything to do with this, I guess that UVa, or Cornell, or someone will be picking up the 59% of the cost. Oh, and doesn't it cost 3-5 times as much to maintain data on-line as it costs to put it on line? Just wondering.

You might have some valid points, and I hope NARA consders them. But there is a lot more going on, Mr. Hirtle, then you have figured in your philosophy.